The European Journal of International Law Vol. 21 no.

1 EJIL 2010; all rights reserved

..........................................................................................

Human Rights and

International Humanitarian
Law
Christian Tomuschat*

It is recognized today that human rights law is not generally displaced in times of armed conflict by international humanitarian law (IHL). Yet in large part this new insight remains to
be particularized as to its actual consequences. In particular, IHL is still predominantly under
the influence of the concept of military necessity.

1 Introduction
It is common knowledge that international humanitarian law (IHL) and human rights
law are two distinct disciplines. IHL has a tradition which goes back at least to the 19th
century when Henri Dunant began his action in favour of victims of war.1 It has continually grown and become increasingly enriched, reaching eventually a remarkably
high level under the two Additional Protocols of 1977. Antonio Cassese has played
an active role in the development of both of these branches of international law, not
only as a scholar, but also as an eminent practitioner to whom the international community has entrusted some of the highest functions it has created in recent decades:
he was the President of the European Committee for the Prevention of Torture (1989
1993) and later the President of the International Criminal Tribunal for the former
Yugoslavia (19931997); he served as Chairman of the International Commission of
Inquiry on Darfur (20042005) and was recently (2009) appointed President of the
Special Tribunal for Lebanon. In the discharge of all of these responsibilities, his task
has invariably been to assess and put into practice the interplay of IHL and international human rights law. He more than anyone else has been in a position to gain
*

Professor emeritus, Humboldt University, Berlin, Faculty of Law; Member, Institut de droit international.
Email: christian.tomuschat@rewi.hu-berlin.de.
See, for instance, E. David, Principes de droit des conflits arms (2002), at 48ff.

EJIL (2010), Vol. 21 No. 1, 1523

doi: 10.1093/ejil/chq003

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Abstract

16 EJIL 21 (2010), 1523

2
3

See, for instance, C. Tomuschat, Human Rights. Between Idealism and Realism (2nd edn, 2008), at 52ff.
F. Berber, Lehrbuch des Vlkerrechts, ii: Kriegsrecht (2nd edn, 1969), at 64; A. Verdross, Vlkerrecht (1937),
at 293.
See Israeli Report to the Human Rights Committee, UN Doc CCPR/C/ISR/2001/2, 4 Dec. 2001, at para. 8,
and Response of the Human Rights Committee, Concluding observations of 4/5 Aug. 2003, UN Doc CCPR/
CO/78/ISR, 21 Aug. 2003. Its position received support from Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 AJIL (2005) 119, at 139.

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a deep understanding of the necessity never to lose sight of the basic premises of the
entire system of modern international law, namely human life and human dignity.
The following observations seek to add a modest complement to the rich intellectual
oeuvre through which Antonio Cassese has been able to provide guidance to the community of international lawyers, and thereby to exercise a determinative impact on the
framing of international policies which directly affect the individual human being.
Which purposes does IHL pursue? IHL is designed to ensure a minimal protection
even during the most profound catastrophe of human society, namely war. During
armed conflict, the combatants have a licence to kill combatant elements of the adversarial camp. Somebody said obviously with a good degree of sarcasm with regard
to the outbreak of a war: the hunting season will open. Accordingly, life, the most
precious asset human beings have (or, in other words, which constitutes the dearest
gift which a divine entity has given us), finds itself structurally threatened during an
armed conflict. Notwithstanding this distressing point of departure, IHL seeks to salvage what realistically can be protected notwithstanding the clash of arms.
On the other hand, human rights are an emanation of the period subsequent to
World War II. They emerged from the atrocities committed during that war, especially
by German armed forces, but also by the victorious allied powers. According to their
original concept, human rights should provide protection against state interference,
but, as everyone knows, their scope has over the years greatly extended beyond the
boundaries of purely negative freedom to impose on states many commitments to
provide protection also against interference by private persons and generally to ensure
their effectiveness (positive rights).2
The right to life is located at the summit of the hierarchy of rights in all human rights
conventions, be it at the universal or regional level. Essentially, these conventions have
been elaborated for times of peace. If a national emergency breaks out, governments
may formally take note of that situation, which permits them to take measures which
derogate from the obligations they have accepted. However, pursuant to Article 4(2)
of the International Covenant on Civil and Political Rights (Covenant or ICCPR), no
derogation from the right to life is permissible. Did the authors of the Covenant wish
totally to prohibit the killing of human beings during armed conflict? This certainly
was not their intention. They simply believed that during armed conflict the Covenant
was inapplicable. In fact, according to many voices heard and expressed during the
last century there is a clear distinction between the law of war and the law of peace:
they do not touch one another, they do not overlap, either one or the other applies,
there is no mixture between the two.3 In recent times, Israel manifested its adherence
to the separation doctrine with regard to the occupation of the Palestinian territory.4

Human Rights and International Humanitarian Law 17

This doctrine has been called into doubt,5 and an intellectual necessity to do this can
clearly be perceived. IHL originated at a time when the concept of human rights did
not yet exist. There can be no doubt that the right to life has always provided the background of IHL, but it must be acknowledged that IHL comes from an epoch when military thinking still largely dominated its architecture. To be sure, human life was protected, but only within the limits of military necessity, a concept which is susceptible of
making a mockery of the entire carefully constructed edifice of IHL.6 Therefore, in our
time, one cannot place full trust in traditional IHL without raising some questions.

Before the International Court of Justice (ICJ), the issue assumed major importance
when the Court had to deliver its advisory opinion on nuclear arms in 1996.7 Some
governments maintained that nuclear arms had to be considered unlawful because
they do not allow for attacking a military target with the requisite precision. It was
contended that on account of their general indiscriminate effect, they encroach upon
the right to life. Other governments objected, invoking the traditional doctrine pursuant to which all the problems emerging during an armed conflict are governed by
IHL.
Confronted with these two opposite opinions, the Court had to respond. In the first
place, it observed that the protection of the International Covenant on Civil and Political rights does not cease in times of war, embracing however at the same time, in a
somewhat contradictory fashion, the theory of lex specialis by stating that:
whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only8 be decided
by reference to the law applicable in armed conflict and not deduced from the terms of the
Covenant itself.9

There is a definite lack of clarity regarding the connotation which the Court attached
to those words. On the one hand, it can be maintained that the Court endorsed the
thesis of the complete separation of the two disciplines. On the other hand, however,
it is also legitimate to argue that the Court rather wanted to highlight the notion
that Article 6 ICCPR has to be read and understood in conjunction with the rules of

9

7
8

See, in particular, Roberts, Transformative Military Occupation: Applying the Laws of War and Human
Rights, in M. Schmitt and J. Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines.
Essays in Honour of Yoram Dinstein (2007), at 438, in particular 452458.
A vivid reflection of that excessive extension is the adage coined by some older German writers:
Kriegsrson geht vor Kriegsmanier, see E. Castrn, The Present Law of War and Neutrality (1954), at 65.
See also the discussion by Berber, supra note 3, at 7779; L. Oppenheim and H. Lauterpacht, International
Law, ii: Disputes, War and Neutrality (7th edn, 1952), at 231 (with references).
Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226.
Emphasis added.
Ibid., at 240, para. 25.

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2 IHL and Human Rights Law The Jurisprudence of the

International Court of Justice

18 EJIL 21 (2010), 1523

As regards the relationship between international humanitarian law and human rights law,
there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others
may be matters of both these branches of international law.11

In the judgment of 2005 in the dispute between the Democratic Republic of the Congo
and Uganda, it reconfirmed that holding.12
Just recently, in the order issued on 15 October 2008 in respect of the dispute
between Georgia and Russia, the Court assumes without any hesitation that the International Convention on the Elimination of All Forms of Racial Discrimination applies
in any event during an armed conflict:
The acts alleged by Georgia appear to be capable of contravening rights, provided for by CERD,
even if certain of these alleged acts might also be covered by other rules of international law,
including humanitarian law.13

This time, the division into three classes no longer appears. However, this new version
of the proposition should not be overrated, since the Court was faced with a request
to issue a provisional measure. The urgency of the matter prevailed over any other
consideration.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136.
Ibid., at 178, para. 106.
12
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 Dec. 2005, 45
ILM (2006) 271, at 317 para. 216.
13
Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Order, 15
Oct. 2008, at para. 112, available at: www.icj-cij.org/docket/files/140/14801.pdf.
10
11

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IHL. This second reading seems to be all the more reasonable since the former reading would have amounted to a complete abandonment of the introductory sentence
about the continuity of human rights in wartime.
Eight years later, in 2004, the Court had to re-examine the relationship between
human rights and IHL when it was called upon to assess the lawfulness of the construction of a wall in the occupied Palestinian territory.10 In that connection, it
became necessary to pronounce on the obligation of the Israeli authorities to respect,
over and beyond IHL, the rules of human rights law, in particular the provisions of the
Covenant. The difficulty of interpretation resulting from Article 2(1) of the Covenant
is well-known. That provision enunciates two criteria, the presence of a person in the
territory of the state concerned and its jurisdiction with respect to that person. But this
is not the topic we are discussing. We are interested in the co-existence of the rules
enunciated by the Covenant and IHL.
This time, the language of the Court was much more differentiated, without, however, entirely clarifying the problmatique. The Court distinguishes three modes of coexistence. In the first place, it reiterates with resolute firmness that the protection of
the conventions on human rights does not cease in case of armed conflict. And then
it continues as follows:

Human Rights and International Humanitarian Law 19

3 The Jurisprudence of Human Rights Courts

See also Dennis, supra note 4, at 133: the Court did not offer specific guidance on how to subdivide the
rights into these categories.
15
Preliminary Objections, Judgment, Series C No. 67, 4 Feb. 2000.
16
Ibid., at para. 33.
17
Every person has the right to have his life respected ... No one shall be arbitrarily deprived of his life.
18
App. No. 57950/00, 24 Feb. 2005, available at: http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId
=43014001&skin=hudoc-en&action=request.
14

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One should welcome the stand taken by the Court in the leading case of the Wall.
However, one could say, Your Excellencies, we are still confused, but on a higher
level.14 In fact, in an actual case, it will always be necessary to know in what sector
the relevant occurrences are located. To give a clear example: the general guarantees
which surround the arrest of a person in accordance with Article 9 ICCPR cannot
find application to prisoners of war. During armed conflict, any judicial control mech
anism is necessarily defective, and masses of persons, captured as prisoners of war,
can hardly be brought before a judge according to the perfectionist model encapsulated in Article 9 ICCPR. But most cases will be located in a twilight zone where no
straightforward answers can be given.
In the jurisprudence of the regional institutions for the protection of human rights
the applicability of human rights has already been discussed intensely.
In the first place, the institutions of the Pact of San Jos, i.e. the American Convention on Human Rights, were faced with the issue. In the case of Las Palmeras,15
a Columbian case, the Inter-American Commission decided that it was necessary to
assess the facts also under the auspices of IHL. In issue was the attack by the armed
forces of the state against a school. A child, their teacher, and several workers in the
surrounding area died when the armed forces used weapons against the school building and executed extrajudicially some of the persons they had arrested since they suspected that the school was a hiding place for guerrilleros. For its part, the Court did not
approve the stand taken by the Commission. It said in a few words that its mandate
was confined to applying the American Convention, and that accordingly it did not
have the authorization to go beyond the limits drawn by that Convention.16 It did not
even mention the notion that the law of the Convention could be inapplicable.
This is certainly not a convincing judgment since it leaves open the question pursuant to which criteria the substantive determination should be made whether a person
has lost his/her life in an arbitrary manner (American Convention, Article 4(1)).17
Especially in armed conflict, this question raises serious difficulties.
At the European Court of Human Rights in Strasbourg, the judges had many times
to deal with occurrences in the internal armed conflict in Chechnya. The judgment in
Isayeva v. Russia of 24 February 200518 contains all the elements that have guided the
Court in all of its later decisions. The Russian forces attacked a village where guerrilla
fighters had also taken refuge. The inhabitants tried to flee from the village but were

20 EJIL 21 (2010), 1523

4 Consequences to be Drawn from the Construction of IHL in

the Light of Human Rights
A Collateral Damage
The first question is radical. Is it not convenient to abandon altogether the concept
of collateral damage, damage that can be human lives? Does not the dignity of the
human person require abstaining from balancing human life against the so-called

App. No. 5108/02, 17 Jan. 2008, available at: http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=

43014001&skin=hudoc-en&action=request.
20
App. No. 67326/01, 25 Sept. 2008, available at: http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId
=43014059&skin=hudoc-en&action=request.
21
It should be added that national courts have affirmed the applicability of the ECHR to persons who were
arrested by the armed forces of a state party even outside the national territory: Al Skeini v. Secretary of
State for Defence [2007] UKHL 26; Al-Jeddah v. Secretary of State for Defence [2008] 1 AC 332 (HL).
19

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attacked during their flight by the Russian air force. Many people died. The authors
of the application, relatives of the victims of those attacks, invoked a violation of the
right to life. Without the least hesitation, the Court examined the facts under Article
2 ECHR without asking whether such occurrences came ratione materiae within the
scope of the ECHR or whether, according to the principle of subsidiarity, the law of
peace had to yield to the law of armed conflict. On the other hand, its assessment was
founded on criteria which essentially belong to IHL, in that it reviewed in great detail
the strategy which the Russian forces should have adopted. Its conclusion was: yes,
the right to life of the victims had been violated.
Later cases confirm this approach. In the recent case of Khatsiyeva,19 the Russian air
force killed by missiles shot from helicopters three young men who were working in a
field. The military commanders believed that they were members of an illegal fighting
group. For the Court, there can be no doubt that the Russian side failed to take the
requisite precautions. Therefore, it concluded that a violation of Article 2 ECHR had
taken place. The decision in Mezhidow of 25 September 2008,20 where a village had
been hit by artillery shelling, is very similar. Five members of a family died. The Court
notes that, given the circumstances, the use of force was not absolutely necessary and
therefore not fully proportionate to pursuing the objectives indicated in Article 6(2)
ECHR.21
Could the Court maintain this jurisprudence also in the circumstances of an international armed conflict with its vast dimensions? Serious doubts arise in that connection, but I am perfectly in agreement with the Court that non-international conflict
is the area where the right to life can have an impact on the traditional doctrine and
should re-orient the interpretation of the traditional law. It should be reiterated that
IHL is deeply rooted in the past and that some of its elements may appear rough and
tough, requiring a profound overhaul.

Human Rights and International Humanitarian Law 21

B The Notion of Combatant or Fighter in Non-International Armed

Conflict
Coming back to non-international armed conflict, the question who is a combatant
is particularly delicate.22 Additional Protocol II of 1977 refers only implicitly, by contrast, to that concept by affording protection to persons who do not take a direct part
or who have ceased to take part in hostilities (Article 4(1)). Additionally, Article 13
sets out guarantees in favour of the civilian population. Likewise, Common Article 3
of the four Geneva Conventions of 1949 speaks only of persons taking no active part
in the hostilities which necessitates drawing a distinction between such persons
and others who in fact play an active role in armed activities. It stands to reason that
persons who are actively engaged in armed activities may be killed. But how do we
characterize a fighter who has withdrawn to his home and has stayed there for days,
maybe even weeks? Is he still a combatant?23

Technically, in non-international conflict there are no combatants, but only fighters: see Bothe, Tten
und gettet werden Kombattanten, Kmpfer und Zivilisten im bewaffneten Konflikt, in K. Dicke et al.
(eds), Weltinnenrecht. Liber amicorum Jost Delbrck (2005), at 67, 72.
23
No clear answers can be gleaned from Rule 1 of the codification exercise by J.-M. Henckaerts and
L. Doswald-Beck, Customary International Humanitarian Law, i: Rules (2005), at 3ff.
22

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military necessity? It is true that to balance these two elements may at first glance
appear to be a scandalous operation. On the other hand, the distinction between
military objectives and civilian objects constitutes the core of humanitarian law. If it
is no longer permissible to attack the installations and military units of an adversary
if there are civilians in the neighbourhood, a breakdown of the entire regime of distinctions between civilians and combatants is almost pre-programmed. The parties to
an armed conflict are obligated to separate their military installations from densely
populated areas of their civilian population (Articles 57(7), 58(b) of Additional Protocol I). If, deliberately, they introduce such installations into civilian environs, they
must assume full responsibility. They cannot, by such tactics, obtain military advantages. It would be highly inappropriate to favour a party which does not respect the
applicable rules of belligerence in order to change the military balance in its favour.
To abolish the right to attack military objectives if civilian victims must be expected
would lead to that result. This again would mean that reciprocity, the principle which
encourages the parties involved to respect the rules on the conduct of armed activities,
could not be maintained. Accordingly, any such new rule would hardly be respected,
with extremely serious consequences for the entire regime for the protection of civilians. However, in any case where civilians are to be expected as victims of an attack
against a military objective, the scrutiny must be strict. The test of proportionality
must be administered with the utmost care. In that regard, Article 57 of Additional
Protocol I provides essential indicators. It cannot be in conformity with international
law to destroy, by bombing from the air, entire families on account of the suspicion
that someone in a specific house is somehow involved in Hamas activities.

22 EJIL 21 (2010), 1523

In Afghanistan the Americans hold that view, and they feel accordingly justified in
attacking dwellings with warplanes even far away from any actual hostilities. Entire
families have been destroyed. Frequently, the end result has been the death of a socalled terrorist disposed of, but accompanied by the death of many other persons,
civilians to all intents and purposes. Here, one sees very clearly the serious consequences of the distinction between the law of human rights and IHL:
- A
 ccording to IHL, a person who belongs to the armed forces24 of the enemy

can be targeted, also outside active hostilities;

- According to the law of human rights, whenever the state wishes to take the

I think that precisely the cases we are confronted with, cases of the use of force outside
active hostilities, should all be reviewed on the basis of human rights exclusively
according to human rights. Cases of targeted killing have not been mentioned, but
I am profoundly convinced that such cases should also be assessed pursuant to the
rules of human rights law. In circumstances where no fighting between opposite
forces takes place, a licence to kill is unacceptable.25 Nor can the law of war be lighthandedly extended by including in the category of combatants or fighters all those
who belong to the political groundwork of a movement engaged in actual hostilities.
For instance, policies which seek to eradicate anyone who has discharged a political function for Hamas in the Gaza strip would therefore be clearly inconsistent with
the requirements of IHL.26 There is no justification for withdrawing attacks against
the civilian population from the ambit of human rights by blurring the borderline
between that population and those involved in armed activities.

6 Concluding Observations
My conclusions mean at the same time that to a great extent the gates of the mechanisms for the protection of human rights are flung open. The Strasbourg Court is right
in subjecting the actions of the Russian forces in Chechnya to its review. We all know
that IHL is affected by a great lack of remedies. There is the Fact-Finding Commission

Art. 1(1) of Additional Protocol I speaks of dissident armed forces or other organized armed groups.
Bothe, supra note 22, at 72ff, 80, is of the view that a fighter remains a fighter and remains subject to attack even when he returns home. In our view, this interpretation does not take sufficiently into account
the specificities of non-international conflict.
26
Reference is made to a report by the International Herald Tribune, 1718 Jan. 2009, at 8: [t]he army attacked both aspects of Hamas its resistance or military wing and its dawa, or social wing a senior
[Israeli] intelligence officer said. He argued that Hamas is all of a piece and that in a war its instruments of
political and social control were as legitimate a target as its rocket caches. This is a recipe for total war.
24
25

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life of a human, it must take the utmost precautions, abiding by the narrow
requirements of the relevant clauses in the provisions guaranteeing the right
to life. The entire context, the specific situation, must be taken into account.
Review of cases of self-defence is carried out according to strict rules. Shots to
kill are permissible only in extreme circumstances.

Human Rights and International Humanitarian Law 23

In fact, the Annual Report 2008 of the European Court of Human Rights, at 128, lists 2,022 pending cases
against Georgia whereas one year earlier the number was 286: see Annual Report 2007, at 135.

27

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according to Article 90 of Additional Protocol I, but hitherto it has not been able to
start its work. The intervention of the European Court of Human Rights is therefore
highly welcome. But there is one big caveat: we do not know whether the Court can
really bear the weight of mass phenomena as they may derive from a large-scale armed
conflict. It has been reported that already 2,000 applications by Ossetians have been
filed against Georgia.27 Litigation resulting from international armed conflict has traditionally been handled at intergovernmental level in the relationship between states,
and there are good grounds for maintaining that practice. However, as far as internal
armed conflicts are concerned, that avenue is closed. Primarily, the mechanisms of
the state concerned are called upon to take the requisite remedial action. However,
where those mechanisms fail to operate in accordance with the human rights obligations of their country, the way to Strasbourg remains the only remedy which victims
can activate.